Piracy and UNCLOS: Modern Problems Require Modern Solutions

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For much of human history, the management of the oceans and seas followed an informal system, described in the seventeenth century as the “freedom-of-the-seas” doctrine.[1] But as globalization connected the world in new ways, a clear need arose for a state to formally claim its natural resources.[2] Such a claim provided a state with the right to protect its resources from spoilage caused by other states and commercial ships.[3] Thanks to an influential speech by Maltese Ambassador Pardo, the UNset out to transform a patchwork of national declarations and laws into a consistent international system.[4] One of, if not the most, comprehensive documents to come from this endeavor is the United Nations Convention of the Law of the Sea (“UNCLOS”).[5]

This Convention is so well-known and powerful that it is sometimes referred to as the “constitution of the sea.”[6]  UNCLOS currently boasts 157 signatories, 169 parties, and hundreds of articles covering everything from basic conditions for prospecting to responsibility and liability for marine research.[7] The only UN countries who do not currently participate in the Convention are Andorra, Eritrea, the Holy See, Israel, Kazakhstan, Kyrgyzstan, Peru, San Marino, South Sudan, Syria, Tajikistan, Turkey, Turkmenistan, the United States of America, Uzbekistan, and Venezuela.[8]

One of UNCLOS’s most interesting features is its anti-piracy framework. Starting in Article 101, UNCLOS defines piracy and describes how a state may counter and punish pirates.

“Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”[9]

Under this framework, committing any act defined as piracy will make someone a pirate, regardless of their affiliation.[10] On the high seas, any state may seize and punish pirates so long as the state acts in good faith.[11] Such a detailed framework raises the question: Does modern-day piracy pose a real concern?

Recent developments suggest it does, and that the risk to human life and the global economy should cause non-parties to reassess their stance on UNCLOS accordingly. On November 26th a U.S. warship responded to a commercial tanker that came under a pirate attack near Somalia.[12] Far from being an isolated incident, piracy in the Red Sea has increased in the last few years to the point some states are considering assembling naval task forces to escort ships and police the region.[13] While it may be a hotbed of piracy, the Red Sea is not an outlier.[14] The Gulf of Guinea has also long suffered from high rates of piracy.[15] However, decisive state action has started to slowly lower that rate, suggesting that joint action could have a similar effect in other maritime sectors.[16] This is exactly the kind of unified multilateral action UNCLOS generally supports, despite jurisdictional limitations.[17]

UNCLOS is far from a perfect document, but there is value in having a universal system of governing the seas. It allows states to craft more consistent maritime legislation and provides for unified anti-piracy practices regardless of jurisdiction.[18] This is despite critics’ claims that UNCLOS harms the economic and security interests of its signatories. In reality, the treatment of piracy is largely consistent with international practices and common law, which has always treated piracy differently than other kinds of crime.[19] “[Historically] ‘piracy’ was treated as both a kind of public war and special sort of common crime.”[20] Non-parties to UNCLOS should reassess their stance and sign on to a global maritime framework that is safer and more efficient than the old common law, even if adhering to UNCLOS may harm a state’s economic output.

[1] The United Nations Convention on the Law of the Sea (A Historical Perspective), U.N. Div. for Ocean Affs. and the L. of the Sea, https://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm (1998).

[2] Id.

[3] See Generally,David Hunter, International Environmental Law, 19 ABA Insights on L. and Soc’y (Jan. 5, 2021), https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol–19—issue-1/international-environmental-law/.

[4] How One Maltese Diplomat Gave the World the Law of the Sea, Maltese Dep’t of Foreign Affs., https://foreign.gov.mt/malta-360-insights/how-one-maltese-diplomat-gave-the-world-the-law-of-the-sea/ (last accessed March 1, 2024); U.N. Div. for Ocean Affs. and the L. of the Sea, supra note 1.

[5] United Nations Convention on the Law of the Sea, IMO, https://www.imo.org/en/ourwork/legal/pages/unitednationsconventiononthelawofthesea.aspx#:~:text=The%20United%20Nations%20Convention%20on,the%20oceans%20and%20their%20resources (last accessed March 2, 2024).

[6] Tullio Treves, United Nations Convention on the Law of the Sea 1, U.N. Audiovisional Libr. of Int’l L., https://legal.un.org/avl/pdf/ha/uncls/uncls_e.pdf.

[7] United Nations Convention on the Law of the Sea, U.N. Treaty Collection (March 8, 2024), https://treaties.un.org/pages/showdetails.aspx?objid=0800000280043ad5.

[8] UNCLOS, Curtis, https://www.curtis.com/glossary/public-international-law/unclos (last accessed March 2, 2024).

[9] United Nations Convention on the Law of the Sea art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397.

[10] Id. at art. 103.

[11] The Fletcher Sch., The Law of the Sea 44 (John Burgess et al. eds., 2017); UNCLOS, supra note 9, at 105.

[12] See Idress Ali & Phil Stewart, Somali Pirates Likely Behind Attempted Tanker Seizure -US Military, Reuters (Nov. 27, 2023), https://www.reuters.com/world/africa/somali-pirates-likely-behind-attempted-tanker-seizure-pentagon-2023-11-27/. Several firms have developed who specialize in maritime security for corporate shipping. While their resources are not intended to be a complete academic analysis, these market sources provide a unique practitioners’ view that is worth considering as one of many stakeholders. See generally Eurasia Review, Piracy on the Seas: The Great Security Challenge of the 21st Century, Dryad Glob. (May 18, 2023, 8:00 AM), https://channel16.dryadglobal.com/piracy-on-the-seas-the-great-security-challenge-of-the-21st-century; see also Maritime Security,Neptune P2P Grp., https://neptunep2pgroup.com/services-category/maritime-security-services/ (last accessed Mar. 1, 2024); Services,Hart, https://hartinternational.com/maritime-security/ (last accessed Mar. 1, 2024).

[13] Heather Mongilio, U.S. in Talks to Form New Red Sea Task Force to Guard Commercial Ships in the Red Sea, Says White House, U.S. Naval Inst. News (Dec. 4, 2023, 6:14 PM), https://news.usni.org/2023/12/04/u-s-in-talks-to-form-new-red-sea-task-force-to-guard-commercial-ships-in-the-red-sea-says-white-house.

[14] See Reducing the Risk of Piracy, SmartTraveller.Gov.AU (Jan. 10, 2024), https://www.smartraveller.gov.au/before-you-go/safety/piracy.

[15] Id.

[16] Frederick Boamah, The Role of the UN Security Council in the Fight Against Piracy in the Gulf of Guinea, 17 Cent. Eur. J. of Int’l & Sec. Stud.  66 (Sept. 8, 2023), https://doi.org/10.51870/LQHU1305.

[17] See id.

[18] See Treves, supra note 6.

[19] See Alfred Rubin, The United States of America and the Law of Piracy, 63 Int’l L. Stud. 122, https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1768&context=ils#:~:text=%22%20Judge%20Story%20charged%20the%20jury,amounted%20to%20a%20felony%20there (last accessed Mar. 5, 2024).

[20] Id.